Remission for prisoners ease congestion in jails

Prisons are becoming less congested each passing day, thanks to a declaration that sections of the Prisons Act which denied inmates remission are unconstitutional.
The mass exodus, has seen hundreds of inmates return home to begin rebuilding their lives, from where they left.
Different courts issued orders directed at the Commissioner General of Prisons, that inmates are entitled to remission. The Attorney-General opted not to appeal against the rulings.
Remission is the reduction of the term of a prison sentence, usually due to good behaviour, exceptional merit, permanent ill-health or other special grounds.
DIGNITY OF PRISONERS
In August, High Court Judge George Odunga said the dignity of the person is ignored if he is denied remission that is available to others serving similar sentences, simply on the irrational presumption that he is incapable of reforming.
He said prisoners with definite sentences and those jailed at the pleasure of the President are also entitled to remission.
Five robbery with violence convicts — Sammy Musembi Mbugua, Nicholas Mukila Ndetei, Sammy Kitonga Mukusya, John Muoki Mbatha and Paul Mumo Muia — serving sentences ranging from 15 to 40 years, challenged a section of the Prisons Act arguing that it contravenes Article 27 of the Constitution.
“Failing to consider the diverse character of the convicts, and the circumstances of the crime, but instead subjecting them to the same (mandatory) sentence thereby treating them as an undifferentiated mass, violates their right to dignity,” justice Odunga in the August 27, 2019 judgment.
He directed that the Deputy Registrar of Machakos High Court to forthwith transmit a certified copy of the judgment to the Commissioner-General of Prisons, who shall be guided accordingly in respect of all the other prisoners in the same situation with the petitioners.
Other courts have equally held that Section 46(1) of the Prisons Act is unconstitutional since it denies remission to persons sentenced to imprisonment for an offence under Section 296(1) of the Penal Code.
“The Commissioner-General of Prisons shall forthwith proceed to calculate remission of sentence for Brown Tunje Ndago (petitioner); and the Deputy Registrar of Malindi High Court is directed to forthwith transmit a certified copy of this judgment to the Commissioner-General of Prisons who shall be guided accordingly in respect of all the other prisoners in the same situation with Mr Tunje,” High Court Judge Weldon Korir in the April 12, 2019 judgment.
In July this year, High Court judge Thripsisa Cherere expressed dismay at the failure by the Prisons Commissioner General to act accordingly, as directed by court.
“There are numerable decisions from this court that Section 46 of the Prisons Act is clear that remission of sentence is available to all convicted criminal prisoners which the Cabinet Secretary for the time being responsible for Internal security and the Prisons Commissioner General seem not to be aware of or have ignored,” Lady Justice Cherere in a July 31, 2019 judgment.
The judge ruled that Edwin Makumba Outa, Eliud Moses Owino Apwapo, Richard Omondi Mbewa, and Joel Nyanja Ochieng, who had filed the case, are entitled to remission.
In yet another judgment on March 28, 2019 Lady Justice Cherere also found that Kenneth Otieno Odhiambo, Geoffrey Omondi Omware, Aggrey Ochieng Aguch, Robert Ouko Okoko, and Wycliffe Akello Ochieng, who had filed the case, are entitled to remission.
Section 46 of the Prisons Act allows the Commissioner to grant remission of sentence to any prisoner on condition that he has served one calendar month and is not sentenced to imprisonment for life or for an offence under Section 296(1) of the Penal Code or is detained at the President’s pleasure.
Justice Korir said some provisions of Section 46 of the Prisons Act have to a large extent been rendered sterile by the recent developments in law.
“For a prisoner, remission is one of the beacons of hope of life outside prison. It is a motivating factor towards reformation. There is no reason why a person who commits murder, robbery with violence or “simple robbery” should be denied remission if they have been sentenced to serve fixed prison terms,” justice Korir.
“It is true that these are indeed very serious offences. They are, however, not the only grave offences. The gravity of the offences cannot be good reason for denying these convicts remission for those convicted of grave offences like sexual offences are entitled to remission of their sentences. It is therefore discriminatory and indeed unconstitutional to deny remission of sentence to a certain category of prisoners serving definite sentences,” justice Korir.
The judge said every convict, whatever offence they are convicted of, serving a determinate, definite or fixed prison term is entitled to remission.
Last December, justice Korir had in another matter filed by an inmate – Hudson Okunda Ochola, also observed that he is aware that there are several prisoners in similar predicament to Hudson Okunda Ochola. He said it is not necessary for each prisoner to file a petition like that of Mr Okunda.
“In the circumstances, I direct that this judgment be served upon the Commissioner General of Prisons who shall ensure that all prisoners, who are still serving sentences, are considered for remission of sentence in accordance with Section 46 of the Prisons Act,” justice Korir.




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